A Drag on Our National Security

A Drag on Our National Security

A Department of Homeland Security is essential, both political parties agree, to avoid a repeat of the failures of coordination and…

A Drag on Our National Security

A Department of Homeland Security is essential, both political parties agree, to avoid a repeat of the failures of coordination and intelligence that allowed terrorists to slip into the country and clues to be dropped. But the new department is stalled, perhaps indefinitely, over the application of civil service rules for its employees. The Democratic majority in the Senate says the proposal does not “protect the rights of federal workers.” President Bush says he won’t sign a bill without “management flexibility.”

A Department of Homeland Security is essential, both political parties agree, to avoid a repeat of the failures of coordination and intelligence that allowed terrorists to slip into the country and clues to be dropped. But the new department is stalled, perhaps indefinitely, over the application of civil service rules for its employees. The Democratic majority in the Senate says the proposal does not “protect the rights of federal workers.” President Bush says he won’t sign a bill without “management flexibility.”

On the surface, this looks like just a petty political dispute over obscure administrative details — bullying Republicans against bleeding-heart Democrats. In fact, the fight goes to the heart of why government is too often ineffective. Warren Rudman and Lee Hamilton, co-chairmen of the U.S. Commission on National Security/21st Century, could not be more blunt; they assert that “today’s civil service has become a drag on our national security.”

Jim King, head of the Office of Personnel Management under President Bill Clinton, once noted that the civil service system looks great in theory but trying to accomplish anything is “like swallowing a 64-pound pill.” The layers of internal regulations would be unimaginable to most Americans. At the core of civil service is one assumption that paralyzes daily choices: Public employees and their unions can demand a legal hearing whenever there is a disagreement.

Imagine being a supervisor in this environment. Do you go through theday thinking about how to stop terrorists, or are you preoccupied withhow to negotiate the legal minefield of civil service?

For personnel decisions, the civil service rules operate as a kind of legal air bag, allowing a disgruntled worker to force the supervisor to prove the wisdom of an adverse decision, even a negative comment on an evaluation form. The process of dismissing a worker who is incompetent or worse can take years. (The minimum generally is 18 months.) Getting rid of someone who has bad judgment is basically impossible: How would a supervisor prove bad judgment? Last year, according to the Office of Personnel Management, out of an estimated 64,000 federal employees who were designated “poor performers,” only 434 were dismissed through these legal hearings: That’s seven out of 1,000.

Assigning the best person to a new job is impossible unless you’re prepared to prove in a hearing that more-senior personnel aren’t up to the task. After Sept. 11, 2001, the U.S. Customs Service immediately reassigned its best inspectors to better secure our northern border. The union filed a legal proceeding claiming that the reassignments required a nationwide survey of interested civil servants, from which choices should be made on the basis of seniority.

No decision, no matter how important or how trivial, is immune from a legal proceeding alleging that it violates the rights of federal workers. In August, following a directive outlining standard protective measures under each of the homeland security threat levels, the union filed a proceeding to overturn it because it was issued “without first notifying and affording [the union] the opportunity to negotiate.” Several years ago a decision that U.S. Border Patrol officers should carry a side-handled club was rejected as not being within their job description.

Imagine being a supervisor in this environment. Do you go through the day thinking about how to stop terrorists, or are you preoccupied with how to negotiate the legal minefield of civil service?

The bureaucratic mind-set may be tolerable in a department processing crop reports, but not where instinct and agility can make the difference between life and death. The public servants guarding our freedom must be alert to subtle clues and suspicions, and be willing to go the extra mile to figure out what’s really going on. Some people will be good at it; others will not. Other than our military, which operates with similar flexibility, it’s hard to imagine a greater or graver public responsibility.

Bureaucracy inevitably flows from the absence of personal accountability, because the only alternative is rule accountability. Having a rule for everything was an idea that fit neatly with early-20th-century theories that government could be run like an assembly line, with each person doing his or her delineated task. But that’s much like central planning, and it works just as badly, because it suppresses the human instincts needed for success.

What’s amazing is that anything gets done. That’s a tribute to the fact that most public employees are good, and many superb. Instead of defending the system, Congress should take note of the one characteristic that all effective public institutions seem to have in common: an internal culture in which employees basically ignore the rules, focusing instead on getting the job done.

Public employees are the victims, not the villains, of this system. Imagine being a dedicated public servant and having to work, day after day, with an incompetent colleague. The destructive effect on morale, as a personnel report to Clinton noted, is “far greater than the number of poor employees.” Imagine what it’s like to have your instincts of right and wrong suppressed by mind-numbing bureaucracy. Study after study has confirmed the debilitating effects of working in this kind of environment, including higher stress and cardiac disease and an “institutional neurosis marked by apathy, withdrawal, lack of initiative and spontaneity.”

Every administration in memory has tried to overhaul the civil service system. Al Gore’s Reinventing Government initiative got beaten back almost at the gate. The Volcker Commission in 1989 concluded that civil service “is legally trammeled and intellectually confused” and “certainly not . . . hiring the most meritorious candidates.”

The Carter administration actually succeeded in increasing accountability, but only for the most senior civil servants. The most effective reformer in recent history is Sen. Zell Miller (D-Ga.), who in 1996, when he was governor of Georgia, abolished civil service for all new hires. Almost alone among active political leaders, Miller has been willing to say that this emperor has no clothes: “Despite its name, the merit system is not about merit. It offers no reward to good workers. It only provides cover for bad workers.”

No one is advocating a return to the spoils system. Under the proposal supported by the administration, agencies would still be subject to general strictures against patronage hiring and arbitrary dismissals. Probably the one weakness of the proposal in this age of distrust is that it leaves to a later date how to accomplish non-litigation safeguards. But new safety nets are not hard to imagine — for example, a management-labor committee with power to guard against arbitrariness.

What’s ultimately needed is a new deal for public servants. The civil service system is broken. Its worst flaw — that it suppresses the human element needed to get the job done — is precisely what America cannot afford when ferreting out the terrorists trying to destroy the fabric of our free society.

Philip Howard is a lawyer, author and chairman of Common Good, a legal reform coalition.

This article was originally published in the Washington Post on October 15, 2002.